bylaws2008.htm
BY-LAWS
OF
COMMUNITY
BANCORP.
A Vermont
Corporation
(Amended
and Restated as of [July 8, 2003)]
[(Further
Amended January 6, 2004)]
[(Further
Amended July 6, 2004)]
[(Further
Amended] October [12, 2004)]
[(Further
Amended April 4, 2006]7,
2008)
TABLE
OF CONTENTS
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Page
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ARTICLE
ONE: OFFICES
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1
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1.01
Registered Office and Agent.
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1
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1.02
Other Offices.
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1
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ARTICLE
TWO: SHAREHOLDERS
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1
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[2.01
Annual Meetings.]2.01 Classes of Shares.
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1
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2.02
[Special]Annual
Meetings.
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1
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2.03
[Place of]Special
Meetings.
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2
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2.04
[Notice.]Place of
Meetings.
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2
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2.05
[Voting List.]Notice.
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2
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2.06
Voting [of Shares.] List.
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2
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2.07
[Quorum.]Voting of Shares Held
by Corporation.
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3
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2.08
[Required Vote; Withdrawal of]Quorum.
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3
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[2.09
Method of Voting; Proxies.]2.09 Required Vote;
Withdrawal of Quorum.
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3
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[2.10
Acceptance of Votes.]2.10 Method of Voting;
Proxies.
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[4]3
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[2.11
Record Date.]2.11 Acceptance of
Votes.
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[5]4
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[2.12
Nominations and Other Business.]2.12 Record
Date.
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5
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[2.13
Presiding Officials at Meetings.]2.13 Nominations and
Other Business.
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[7]5
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[2.14
Inspection of Corporate Records.]2.14 Presiding
Officials at Meetings.
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[7]8
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2.15 Inspection of Corporate
Records.
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8
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ARTICLE
THREE: DIRECTORS
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[8]9
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3.01
Management.
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[8]9
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3.02
Number; Election; Term; Qualification.
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[9]10
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3.03
Classification.
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[9]10
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3.04
Vacancies.
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[9]10
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3.05
Removal.
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10
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3.06
Inconsistency
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[10]11
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3.07
Mandatory Retirement.
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[10]11
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3.08
Nominations.
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[10]11
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3.09
Annual Meeting.
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[10]11
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3.10
Regular Meetings.
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[10]11
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3.11
Special Meetings.
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[10]11
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3.12
Quorum; Majority Vote.
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[11]12
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3.13
Procedure; Minutes.
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[11]12
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3.14
Presumption of Assent.
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[11]12
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3.15
Compensation.
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12
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ARTICLE
FOUR: COMMITTEES
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[12]13
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4.01
Audit Committee.
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[12]13
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4.02
Compensation Committee.
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[12]13
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4.03
Nominating/Corporate Governance Committee.
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[12]13
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4.04
[Outside,]Independent
Directors.
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[13]14
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4.05
Other Committees.
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[13]14
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4.06
Number; Qualification; Term.
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[13]14
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4.07
Limitation on Authority.
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[13]14
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4.08
Committee Changes.
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[14]15
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4.09
Meetings.
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[14]15
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4.10
Quorum; Majority Vote.
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[14]15
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4.11
Minutes.
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[14]15
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4.12
Compensation.
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[14]15
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4.13
Responsibility.
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[14]15
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ARTICLE
FIVE: GENERAL PROVISIONS RELATING TO MEETINGS
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15
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5.01
Manner of Giving Notice.
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[15]16
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5.02
Waiver of Notice.
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[15]16
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5.03
Householding of Notices; E-Proxy.
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[15]16
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5.04
Bulk Mail.
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[15]17
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5.05
Shareholders Without Forwarding Addresses.
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[15]17
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5.06
Telephone and Similar Meetings.
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[15]17
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5.07
Action Without Meeting.
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[16]17
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ARTICLE
SIX: OFFICERS AND OTHER AGENTS
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[16]18
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6.01
Number; Titles; Election; Term.
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[16]18
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6.02
Removal.
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[17]18
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6.03
Vacancies.
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[17]18
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6.04
Authority.
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[17]18
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6.05
Compensation.
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[17]18
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6.06
Chairman of the Board.
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[17]19
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6.07
Chief Executive Officer
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[17]19
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6.08
President.
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[17]19
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6.09
Chief Operating Officer
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[18]19
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6.10
Vice President.
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[18]20
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6.11
Treasurer.
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[18]20
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6.12
Assistant Treasurers.
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[18]20
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6.13
Secretary.
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[18]20
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6.14
Assistant Secretaries.
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[19]21
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ARTICLE
SEVEN: CERTIFICATES AND SHAREHOLDERS
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[19]21
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7.01
Certificates for Shares.
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[19]21
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7.02
Issuance.
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[19]21
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7.03
Shares Without Certificates.
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[20]21
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7.04
Consideration for Shares.
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[20]22
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7.05
Lost, Stolen, or Destroyed Certificates.
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[20]22
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7.06
Transfer Agent; Transfer of Shares.
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[21]23
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7.07
Registered Shareholders.
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[21]24
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ARTICLE
EIGHT: INDEMNIFICATION
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[22]24
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8.01
Definitions.
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[22]24
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8.02
Authority to Indemnify.
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[22]24
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8.03
Mandatory Indemnification in Certain Circumstances.
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[23]25
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8.04
Advance for Expenses.
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[23]25
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8.05
Court Ordered Indemnification.
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[23]26
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8.06
Determination and Authorization of Indemnification.
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[24]26
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8.07
Indemnification of Officers, Employees and Agents.
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[25]27
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8.08
Insurance.
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[25]28
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8.09
Contract Right.
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[25]28
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8.10
Enforcement of Rights.
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[26]28
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8.11
Non-Exclusive Rights; Survival.
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[26]28
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8.12
Severability.
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[26]29
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8.13
Application of this Article.
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[26]29
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ARTICLE
NINE: EMERGENCY PREPAREDNESS
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[27]30
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9.01
Emergency.
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[27]30
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ARTICLE
TEN: MISCELLANEOUS PROVISIONS
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[27]30
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10.01
Distributions.
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[27]30
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10.02
Reserves.
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[27]30
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10.03
Books and Records.
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[28]30
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10.04
Fiscal Year.
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[28]31
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10.05
Seal.
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[28]31
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10.06
Resignation.
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[28]31
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10.07
Securities of Other Corporations.
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[28]31
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10.08
Amendment.
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[28]31
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10.09
Invalid Provisions.
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[29]32
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10.10
Headings.
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[29]32
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BY-LAWS
OF
COMMUNITY
BANCORP.
ARTICLE
ONE: OFFICES
1.01 Registered Office and Agent.
The registered office and registered agent of Community Bancorp. (the
“Corporation”) shall be as designated
from time to time by the appropriate filing by the Corporation in the office of
the Secretary of State of Vermont.
1.02 Other Offices. The
Corporation may also have offices at such other places, both within and without
the State of Vermont, as the Board of Directors may from time to time determine
or the business of the Corporation may require.
ARTICLE
TWO: SHAREHOLDERS
2.01 Classes
of Shares. The
Company has two classes of outstanding shares, common and preferred, as
authorized by Article Five of the Corporation's Amended and Restated
Articles of Association (the "Articles
of Association"). The preferred shares are
issuable in one or more series and have such limited voting rights as the Board
of Directors may determine upon issuance and as may be specified in the
applicable Certificate of Creation, filed with the Articles of Association in
the Office of the Vermont Secretary of State. The provisions of this Article
shall pertain to each class or series of shareholders who have the right to vote
as a voting group on any item presented at an annual or special meeting of
shareholders, as the context may require.
2.02
Annual Meetings.
The regular annual meeting of shareholders of the Corporation shall be
held on the [first]third Tuesday of May
of each year, at such time and place as shall be designated by the Board of
Directors and stated in the notice of the meeting. The Board of Directors may
select a different date for the annual meeting upon a resolution duly adopted by
the Board prior to the issuance of the notice of the meeting prescribed in
Article 2.[04]05. At such meeting,
the shareholders shall elect directors and transact such other business
as may
properly be brought before the meeting. [(As amended November 15, 1983 and
September 12, 2000).]
2.[02]03 Special Meetings. A
special meeting of the shareholders may be called at any time by the
Chairman, or by the Board of Directors, or by the Secretary upon the petition of
the holders of not less than ten percent of [all shares]the shares of a
voting group entitled to vote on any issue at such meeting. Only such
business shall be transacted at a special meeting as may be stated or indicated
in the notice of such meeting. At any special meeting the
only matters that may be considered for action by the shareholders are those
proposed by the Board or by the shareholders who have requested the meeting,
provided that such shareholders shall have complied with Section 2.13 of this
Article Two with respect to each such matter (including election of any
Director).
2.[03]04
Place of Meetings.
The annual meeting of shareholders may be held at any place within or
without the State of Vermont as may be designated by the Board of Directors.
Special meetings of shareholders may be held at any place within the State of
Vermont as may be designated by the [person or persons calling such special
meeting as provided in Section 2.02]Board of Directors in
the notice of meeting. If no place for a meeting is designated, it shall
be held at the registered office of the Corporation.
2.[04]05 Notice. Written or printed
notice in accordance
with Section 5.01 of these Bylaws stating the place, day, and hour of
each meeting of shareholders, and, in the case of a special meeting, the purpose
or purposes for which the meeting is called, shall be delivered not less than
ten nor more than 60 days before the date of the meeting, [either personally or
by mail,] by or at the direction of the Board of Directors, the Chairman, the
Secretary, or the persons calling the meeting, to each shareholder of record
entitled to vote at such meeting.
2.[05]06 Voting List. Beginning two
business days after the notice of meeting is given, and continuing through the
meeting, the Secretary shall make available for inspection by any shareholder a
complete list of shareholders entitled to notice of and to vote at such meeting,
arranged in alphabetical order and by voting group (if
applicable), including the address of each shareholder and the number of
voting shares held by each shareholder. Such list shall be
kept on
file during the time specified at the principal office of the Corporation or at
a place identified in the notice in the city or town in which the
meeting is to be held. The list shall be subject to inspection during usual
business hours, and upon written demand, by any shareholder of record entitled
to vote at that meeting, or his or her agent or attorney, who shall be entitled
to copy the list at his or her own expense. Such list shall be produced at such
meeting, and at all times during such meeting shall be subject to inspection by
any shareholder of record entitled to vote at that meeting, or his or her agent
or attorney. The original stock transfer books shall be prima facie evidence as
to who are the shareholders entitled to examine such list or stock transfer
books.
2.[06]07 Voting of Shares Held by
Corporation. Treasury shares, and shares of the Corporation's own stock
owned, directly or indirectly by another corporation (other than shares held in
a fiduciary capacity) the majority of the voting stock of which is owned or
controlled by the Corporation, shall not be shares entitled to vote or to be
counted in determining (a) the total number
of outstanding shares[. Shares held by an administrator, executor, guardian, or
conservator may be voted by him, either in person or by proxy, without transfer
of such shares into his name so long as such shares form a part of the estate
and are in the possession of the estate being served by him. Shares standing in
the name of a trustee may be voted by him, either in person or by proxy, only
after the] , (b) the
number of shares [have been transferred into his name as trustee. Shares
standing in the name of a receiver may be voted by such receiver, and] constituting a quorum, or
(c) the number of shares [held by or under the control of a receiver may
be voted by such receiver without transfer of such shares into his name if
authority to do so is contained in the court order by which such receiver was
appointed. Shares standing in the name of another domestic]required to elect a
director or [foreign corporation of any type or kind may be voted by such
officer, agent, or proxy as the By-Laws of such corporation may provide or, in
the absence of such provision, as the Board of Directors of such corporation
shall determine. A shareholder whose shares are pledged shall be entitled to
vote such shares until they have been transferred into the name of the pledgee,
and thereafter, the pledgee shall be entitled to vote such shares.]to approve any other
action.
2.[07]08 Quorum. The holders of a
majority of the outstanding shares of a voting group
entitled to vote on a matter, present in person or represented by proxy,
shall constitute a quorum for action on that matter by such voting group
at any meeting of shareholders, except as otherwise provided by law or
the
Articles
of [Incorporation]Association. If a
quorum shall not be present or represented at any meeting of shareholders, a
majority of the shareholders who are present in person or represented by proxy
and who are entitled to vote as a voting group on
any issue at the meeting, may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At any reconvening of an adjourned meeting any business as to
which a quorum of a
voting group is present or represented by proxy may be transacted by such voting group
which could have been transacted at the original meeting, had a quorum
been present or represented.
2.[08]09
Required Vote; Withdrawal of Quorum.
Except as otherwise provided by law or the Articles of
[Incorporation]Association, if
a quorum [on]of a voting group with respect to
a matter is present in person or represented by proxy at any meeting, the
action on such matter will be approved by such voting group
if the number of votes cast in favor of the matter exceeds the number of
votes cast opposing the matter. The shareholders of a voting group
present at a duly convened meeting may continue to transact business
until adjournment, notwithstanding any withdrawal of shareholders which may
leave less than a quorum remaining.
2.[09]10 Method of Voting; Proxies.
Every shareholder of record shall be entitled at every meeting of
shareholders to one vote on each matter submitted to a vote, for every share
standing in his name on the original stock transfer books of the
Corporation,
except to the extent that the voting rights of the shares of any class or
[classes]series of
shares are limited or denied by the Articles of [Incorporation]Association (including any
Certificate of Creation with respect to preferred shares) or by law. Such
books shall be prima facie evidence as to the identity of shareholders entitled
to vote. At any meeting of shareholders, every shareholder having the right to
vote may vote either in person or by a proxy executed in writing by the
shareholder or by his duly authorized [secretary]attorney-in-fact.
Proxies shall be in
such form and delivered by such method or methods, as the Board may approve from
time to time, including by telephone facsimile or electronic transmission.
Each such proxy shall be filed with the Secretary of the Corporation or
other officer or agent authorized to tabulate votes before or at the time of the
meeting and shall become effective upon such filing. No proxy shall be valid
after 11 months from the date of its execution, unless otherwise expressly
provided in the proxy. If no date is stated on a proxy, such proxy shall be
presumed to have been executed on the date of the meeting at which it is to be
voted. Each proxy shall be revocable unless expressly and conspicuously provided
therein to be irrevocable and the appointment as proxy is coupled with an
interest, or unless otherwise made irrevocable by law.
2.[10]11
Acceptance of
Votes. If the name signed on a vote, consent, waiver, or proxy
appointment (including
one submitted by facsimile or electronic transmission) corresponds to the
name of a shareholder, the Corporation if acting in good faith shall be entitled
to accept the vote, consent, waiver, or proxy appointment and give it effect as
the act of the shareholders. If the name signed on a vote, consent, waiver, or
proxy appointment does not correspond to the name of its shareholder, the
Corporation if acting in good faith shall nevertheless be entitled to accept the
vote, consent, waiver, or proxy appointment and give it effect as the act of the
shareholder if:
(1)
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the
shareholder is an entity [as defined in the Vermont Business Corporation
Act land the name signed purports to be that of an officer or agent of the
entity;
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(2)
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the
name signed purports to be that of an administrator, executor, guardian,
or conservator representing the shareholder and, if the Corporation
requests, evidence of fiduciary status acceptable to the Corporation has
been presented with respect to the vote, consent, waiver, or proxy
appointment;
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(3)
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the
name signed purports to be that of a receiver or trustee in bankruptcy of
the shareholder and, if the Corporation requests, evidence of this status
acceptable to the Corporation has been presented with respect to the vote,
consent, waiver, or proxy
appointment;
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(4)
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the
name signed purports to be that of a pledgee, beneficial owner, or
attorney-in-fact of the shareholder and, if the Corporation requests,
evidence acceptable to the Corporation of the signatory's authority to
sign for the shareholder has been presented with respect to the vote,
consent, waiver, or proxy appointment;
or
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(5)
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two
or more persons are the shareholder as co-tenants or fiduciaries and the
name signed purports to be the name of at least one of the co-owners and
the person signing appears to be acting on behalf of all the
co-owners.
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The
Corporation shall be entitled to reject a vote, consent, waiver, or proxy
appointment if the Secretary or other officer or agent authorized to tabulate
votes, acting in good faith, has reasonable basis for doubt about (a) the validity of
the signature on it, or [about] (b) the signatory's
authority to sign for the shareholder, or (c) if applicable, the
electronic transmission by which the proxy appointment or the vote, consent or
waiver was made. The Corporation and its
officer
or agent who accepts or rejects a vote, consent, waiver, or proxy appointment in
good faith and in accordance with the standards of this section are not liable
in damages to the shareholder for the consequences of the acceptance or
rejection. Corporate action based on the acceptance or rejection of a vote,
consent, waiver, or proxy appointment under this section is valid unless a court
of competent jurisdiction determines otherwise.
2.[11]12 Record Date. [For]The Board of Directors may
fix in advance a date as the record date for the purpose of determining
voting groups and
shareholders entitled to notice of or to vote at any meeting of
shareholders or any reconvening thereof or entitled to receive payment of any
dividend or in order to make a determination of shareholders for any other
proper purpose[, the Board of Directors may fix in advance a date as the record
date]. Such record date shall not be more than 70 days prior to the date on
which the particular action[,] requiring such determination of shareholders[,]
is to be taken. [If no record date is so fixed by the Board for the ]When a determination
of shareholders entitled to [notice of, or to]vote at [a]any meeting of
shareholders[, or shareholders entitled to receive a share dividend or other
distribution, the record date for] has been made as provided in
this section, such determination [of such shareholders]shall [be at
]apply to any
adjournment thereof unless the Board of Directors fixes a new record date. The
Board of Directors shall fix a new record date if the meeting is adjourned to a
date more than 120 days after the date fixed for the original
meeting.
2.13
Nominations and Other Business. Nominations for the
election of business on: Directors and other
proposals for action at an annual or special meeting of shareholders may be made
only (a) pursuant to the Corporation's notice of such meeting, (b) by the
presiding officer at the meeting, (c) by or at the direction of a majority of
the Board of Directors, or (d) by one or more shareholders, in compliance with
the provisions of this Section 2.13. In addition, if a shareholder seeks to
include his proposal for action in the Corporation's proxy materials for the
meeting, the shareholder must also comply with Securities and
Exchange Commission ("SEC") Rule 1 4a-8 under
the Securities
Exchange Act of 1934, as amended (the "Exchange
Act"). Notwithstanding anything
herein to the contrary, a proposal by a shareholder for action at a meeting of
shareholders may only be presented if it is a proper matter for shareholder
action.
(a)
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[With
respect to an annual shareholder meeting or any special shareholder
meeting called by the Board or any person specifically authorized
by the Board or these By-Laws to call a meeting, the day before the first
notice is delivered to shareholders;]Time
for Submission. A nomination for the
election of a Director or a proposal for action at an annual or special
meeting of shareholders may be made by a shareholder only if a written
notice of such nomination or proposal that complies in all respects with
this Section 2.13 has been received by the Secretary at the Corporation's
principal office on a timely basis. To be timely, such notice must be
received by the Corporation at its principal
office:
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[(b)
|
With
respect to a special shareholder's meeting demanded by the shareholders,
the date the first shareholder signs the
demand;
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(c)
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With
respect to the payment of a share dividend, the date the Board authorizes
the share dividend;
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(d)
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With
respect to actions taken in writing without a meeting, the date the first
shareholder signs a consent;
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(e)
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And
with respect to a distribution to shareholders, other than one involving a
repurchase or reacquisition of shares, the date the Board authorizes the
distribution.
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When a
determination of shareholders entitled to vote at any meeting of shareholders
has been made as provided in this section, such determination shall apply to any
adjournment thereof unless the Board of Directors fixes a new record date. The
Board of Directors shall fix a new record date if the meeting is adjourned to a
date more than 120 days after the date fixed for the original
meeting.]
[2.12 Nominations and Other Business.
Nominations for the election of Directors and other proposals for action
at an annual meeting of shareholders may be made only (a) pursuant to the
Corporation's notice of such meeting, (b) by the presiding officer at the
meeting, (c) by or at the direction of a majority of the Board of Directors, or
(d) by one or more shareholders in accordance with applicable rules of the
Securities and Exchange Commission and the provisions of this Section 2.12. A
proposal for action at an annual meeting must be a proper matter for shareholder
action.
(a)
|
Time for Submission. A
nomination for the election of a Director or a proposal for action
at an annual meeting may be made by a shareholder only if a written notice
of such nomination or proposal has been received by
the Secretary at the Corporation's principal office on a timely basis. To
be timely, such notice must be received not later
than:]
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(1)
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No earlier than 180
days, and no later than 120 days, prior to
[such annual meeting]the third Tuesday in
May; or
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(2)
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If
the annual meeting is to be held on a date other than the [first]third Tuesday
in May, no later
than the close of business on the tenth day following the first
public disclosure of the date of such meeting. The first public disclosure
of the date of any annual meeting of shareholders shall be when public
disclosure of such meeting date is first made (i) in a filing
by the Corporation with the [Securities and Exchange Commission,]SEC, (ii) in
any notice given to The [Nasdaq]NASDAQ Stock
Market, or other securities self-regulatory organization, or (iii) in a news
release reported by any national news
service.
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In the case of a special
meeting,
No later than the close of
business on the tenth day after the earlier of (i) the date the Corporation
shall have mailed notice of such special meeting to its shareholders, or (ii)
the date of the first public disclosure of the date of the special meeting made
in a filing by the Corporation with the SEC. in any notice given to the NASDAQ
Stock Market, or other securities self-regulatory organization, or in a news
release reported by any national news service.
(b)
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Information Required - General.
Each such notice from a shareholder shall set
forth:
|
(1)
|
[As
to the shareholder giving the notice and the beneficial owner, if any, on
whose behalf the notice is given (i) the name and address of such
shareholder and of such beneficial owner; and (ii) the class and number of
shares of the Corporation which are owned of record and beneficially by
such shareholder and such beneficial owner; and] the name and address, as
they appear on the Corporation's books, of the shareholder proposing such
business or nominations and any Shareholder Associated Person (as defined
herein);
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(2)
|
[A
representation that the shareholder is a beneficial owner of stock of the
Corporation entitled to vote at such meeting and intends to be present at
the meeting in person or by proxy to make such nomination or
proposal.](i)
the class and series and number of shares of the Corporation which are
held of record or are beneficially owned by such shareholder and by any
Shareholder Associated Person with respect to the Corporation's securities
and (ii) any derivative positions held or beneficially held by the
shareholder and any Shareholder Associated Person and whether and the extent to
which any hedging or other transaction or series of transactions has been
entered into by or on behalf of, or any other agreement, arrangement or
understanding has been made, the effect or intent of which is to increase
or decrease the voting power of, such shareholder or
any Shareholder Associated Person with respect to the Corporation's
securities;
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(3)
|
any material interest
of the shareholder or any Shareholder Associated Person in
such business or nomination(s);
and
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(4)
|
a representation that
the shareholder intends to be present at the meeting in person or
by proxy to make such nomination(s) or
proposal.
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(c)
|
Information Required -
Nominations. Each notice of nomination for the election of a
Director from a shareholder also shall set
forth:
|
(1)
|
The
name and address of the person to be nominated; |
(2)
|
A
description of all arrangements or understandings between the shareholder
and the nominee and any Shareholder Associated
Person
(as defined herein), or any other person or persons (naming such
person or persons) pursuant to which the nomination is to be made by the
shareholder;
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(3)
|
Such
other information regarding the nominee as would be required to be
included in proxy materials filed under applicable rules of the Securities
and Exchange Commission had the nominee been nominated by the Board of
Directors; and
|
(4)
|
The
written consent of the nominee to serve as a Director if [so]properly nominated and
elected.
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(d)
|
Information Required - Other
Business. Each notice of a proposal for action at an annual meeting
from a shareholder also shall set
forth:
|
(1) |
A
brief description of the proposal; |
(2)
|
The
reasons for making such proposal; and |
(3)
|
Any
direct or indirect interest of the shareholder[,] or any [person on whose
behalf the shareholder is acting,]Shareholder Associated
Person
in making such proposal.
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[(e)
|
Compliance Mandatory.
The presiding officer at the meeting may refuse to permit any
nomination for the election of a Director or proposal to be made at an
annual meeting by a shareholder who has not complied with all of the
foregoing procedures and
requirements.
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2.13]
|
Shareholder
Associated Person. For purposes of this
Section 2.13, a "Shareholder Associated Person" of any shareholder means
(A) any
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(e)
|
person controlling,
directly or indirectly, or acting in concert with, such shareholder, (B)
any beneficial owner of shares of stock of the Corporation owned of record
or beneficially by such shareholder and (C) any person controlling,
controlled by or under common control with such Shareholder Associated
Person.
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(f)
|
Compliance
Mandatory. The presiding officer
at the meeting may refuse to permit any nomination for the election of a
Director or proposal to be made at an annual or special meeting by a
shareholder who has not complied with all of the foregoing procedures and
requirements.
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(g)
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Interpretation
of Provision. Notwithstanding
anything herein to the contrary, this provision shall be deemed to apply
to all shareholder nominations for Director and proposals for other
business, whether or not such shareholder seeks to include such matter in
any proxy materials of the Corporation for such
meeting.
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2.14
Presiding Officials at
Meetings. Unless some other person is elected by a vote of a majority of
the shares then entitled to vote at a meeting of shareholders, or is designated
by the Board of Directors, the Chairman shall preside at and the Secretary shall
prepare minutes of each meeting of shareholders.
2.[14]15
Inspection of Corporate
Records.
(a)
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Minutes and Accounting Records.
The Corporation shall keep as permanent records minutes of all
meetings of its shareholders and Board of Directors, a record of all
actions taken by the shareholders or Board of Directors without a meeting,
and a record of all actions taken by a committee of the Board of Directors
in place of the Board of Directors on behalf of the Corporation. The
Corporation shall maintain appropriate accounting
records.
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(b)
|
Absolute Inspection Rights of
Records Required at Principal Office. Upon written demand to the
Corporation made at least five business days before the date on which he
wishes to inspect and copy, a shareholder
(or his agent or attorney) shall be entitled to inspect and copy, during
regular business hours, any of the following records, all of which the
Corporation is required to keep at its principal
office:
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(1)
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its
Articles [or Restated Articles ]of [Incorporation]Association and
all amendments to them currently in
effect;
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(2)
|
its
By-Laws [or restated By-Laws ]and all amendments to them currently in
effect;
|
(3)
|
the
minutes of all shareholders' meetings, and records of all action taken
by shareholders without a meeting, for the past three
years; |
(4)
|
all
written communications to shareholders generally within the past
three years, including the financial statements furnished for the
past
three years to the shareholders; |
(5)
|
a
list of the names and business addresses of its current directors and
officers; and
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(6)
|
its
most recent annual report delivered to the Secretary of
State. |
(c)
|
Conditional Inspection
Right. A shareholder (or
his agent or attorney) shall be entitled to inspect and copy, during
regular business hours at a reasonable location specified by the
Corporation, any of the records specified below in this paragraph (c),
provided that (i) such shareholder gives the Corporation a written demand
made in good faith, at least five business days before the date on which
he wishes to inspect and copy, (ii) the demand is for a proper purpose and
the written demand describes with reasonable particularity the purpose for
the request and the records he or she desires to inspect, and (iii) the
records are directly connected with the shareholder's purpose. The right
of inspection specified in this paragraph (c) shall apply to the following
records of the Corporation:
|
(1)
|
accounting
records of the Corporation; and |
(2)
|
the
record of shareholders (compiled no earlier than the date of the
shareholder's demand).
|
(d)
|
Copy Costs. The
right to copy records includes, if reasonable, the right to receive copies
made by photocopy or other means. The Corporation may impose a reasonable
charge, covering the costs of labor and material, for copies of any
documents provided to the shareholder. The charge may not exceed the
estimated cost of production or reproduction of the
records.
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(e)
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Shareholder
Includes Beneficial Owner. For purposes of this
Section 2.15, the term "shareholder" shall include a beneficial owner
whose
shares are held in a voting trust or by a nominee on the beneficial
owner's
behalf.
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[(e) Shareholder Includes Beneficial
Owner. For purposes of this Section 2.13, the
term "shareholder" shall include a beneficial owner whose shares are held in a
voting trust or by a nominee on the beneficial owner's behalf.]
ARTICLE
THREE: DIRECTORS
3.01 Management. The business
and affairs of the Corporation shall be managed by the Board of Directors,
subject to the restrictions imposed by law, the Articles of
[Incorporation,]Association, or these
By-Laws.
3.02 Number; Election; Term;
Qualification. [Subject to Section 3.06 below, the ]The Board of
Directors shall consist of not less than 9 nor more than 25 shareholders, the
exact number and the terms of office of which shall be fixed from time to time
by the Board of Directors pursuant to a resolution adopted by a majority of the
full Board of Directors. Such exact number may be increased or decreased by the
affirmative vote of the holders of at least seventy-five percent (75%) of the
combined voting power of all of the then-outstanding shares of the Corporation's
capital stock entitled to vote generally in the election of directors[, (other
than directors, if any, elected under Article Fourteen of the Articles of
Incorporation)]. Election of directors shall be by vote of a majority of the
shares represented in person or by proxy at a meeting at which a quorum is
present.
3.03 Classification. The
directors [(other than directors, if any, elected under Article Fourteen of the
Articles of Incorporation)]shall be classified, with respect to the time for
which they severally hold office, into three classes, as nearly equal in number
as possible. Upon their initial election, the members of the first class shall
hold office for a term expiring at the next annual meeting of the shareholders
after their election, the members of the second class shall hold office for a
term expiring at the second annual meeting of the shareholders after their
election, and the members of the third class shall hold office for a term
expiring at the third annual meeting of shareholders after their election. At
each annual meeting of shareholders following such initial classification and
election, directors elected to succeed those directors whose terms expire shall
be elected for a term of office to expire at the third succeeding annual meeting
of shareholders after their election.
3.04 Vacancies. Subject to
Section 3.06[below], any vacancies in the Board of Directors resulting from
death, resignation, retirement, or removal from
office of
a director may be filled by the Board of Directors, acting by resolution of a
majority of the directors then in office (other than directors, if any, elected
under Article [Fourteen]Fifteen* of the
Articles of [Incorporation]Association),
although less than a quorum. Any director chosen to fill a vacancy as provided
herein shall hold office until the next election of the class for which such
director shall have been elected and shall have qualified. No decrease in the
number of directors shall shorten the term of any incumbent
director.
3.05 Removal. [Subject to
Section 3.07 below, any] Any director, or the
entire Board of Directors, may be removed from office at any time, but only for
cause and only by the affirmative vote of the holders of at least seventy-five
percent (75%) of the
combined voting power of all of the then-outstanding shares of the Corporation's
capital stock entitled to vote generally in the election of
directors.
3.06 Inconsistency. Nothing
contained in Sections 3.02 through 3.06 of this Article Three shall be deemed to
alter, amend or repeal any of the provisions of Article [Fourteen]Fifteen*
of the Articles of Association, which confers, under circumstances
described therein, on the holders of the debentures
referred to therein, the right to elect directors in certain circumstances.
During any period in which such rights may be
exercised, the provision or provisions conferring such rights shall prevail over
any provision of these By-[Laws]laws inconsistent
therewith.
3.07 Mandatory Retirement. No
person whether or not a director in office shall be elected as a member of the
Board of Directors after his or her seventieth birthday. Any director who passes
the age of seventy while in office may continue to serve until the next annual
meeting.
3.08 Nominations. Nominations
for election to the Board of Directors shall be made by the Nominating/Corporate
Governance Committee of the Board of Directors, or by the shareholders, in
compliance with the procedures set forth in Section 2.[12]13 of these
By-Laws.
*Subsequently renumbered to
Article Fourteen and deleted by vote of the shareholders on June 10.
2008.
3.09 Annual Meeting. The Board
of Directors shall hold its annual meeting for the purpose of organization and
the transaction of business, if a qu6rum is present, at its first regularly
scheduled meeting following the annual meeting of shareholders, unless an
earlier special meeting for that purpose is convened by the Chairman of the
Board.
3.10 Regular Meetings. Regular
meetings of the Board of Directors shall be held without notice at such times
and places as may be designated from time to time by resolution of the Board of
Directors and communicated to all directors.
3.11 Special Meetings. A
special meeting of the Board of Directors shall be held whenever called
by the Chairman of the Corporation or by any three directors at such time and
place as the Chairman or directors shall designate in the notice of such special
meeting. The person or persons calling any special meeting shall cause notice of
such special meeting to be given to each director at least 24 hours before such
special meeting. Neither the business to be transacted at, nor the purpose of,
any special meeting of the Board of Directors need be specified in the notice or
waiver of notice of any special meeting, except for proposed amendments to the
By-Laws.
3.12 Quorum; Majority Vote. At
all meetings of the Board of Directors, a majority of the directors fixed in the
manner provided in these By-Laws shall constitute a quorum for the transaction
of business. If a quorum is not present at a meeting, a majority of the
directors present may adjourn the meeting from time to time, without notice
other than an announcement at the meeting, until a quorum is present. The vote
of a majority of the directors present at a meeting at which a quorum is in
attendance shall be the act of the board of directors, unless the vote of a
different number is required by law, the Articles of [Incorporation]Association or these
By-Laws.
3.13 Procedure; Minutes. Meetings of the Board of
Directors may be held in person, or by means of any electronic or
telecommunications medium permitting simultaneous or sequentially structured
communications. At meetings of the Board of Directors, business shall be
transacted in such order as the Board of Directors may determine from time to
time. The Chairman of the Corporation, or in his absence the President, shall
preside at each meeting of the Board of Directors provided that in the absence
of the Chairman and
President,
the Board of Directors may appoint a person to preside at the meeting. The
Secretary of the Corporation or an Assistant Secretary designated by the Board
shall act as secretary of each meeting provided that in the absence of the
Secretary and any qualified Assistant Secretary, the Board of Directors shall
appoint at each meeting a person to act as Secretary of the meeting. The
Secretary of the meeting shall prepare minutes of the meeting which shall be
delivered to the Secretary of the Corporation for placement in the minutes books
of the Corporation.
3.14 Presumption of Assent. A
director of the Corporation who is present at any meeting of the Board of
Directors at which action on any matter is taken shall be presumed to have
assented to the action unless (i) he shall object at the beginning of the
meeting (or promptly following his arrival) to holding the meeting or
transacting business at the meeting, or (ii) his dissent or abstention shall be
entered in the minutes of the meeting or (iii) he shall file his written dissent
or abstention to such action with the presiding officer of the meeting before
the adjournment thereof. Such right to dissent shall not apply to a director who
voted in favor of such action.
3.15 Compensation. Unless
otherwise provided in the Articles of [Incorporation, ]Association, by
resolution of the Board of Directors, each director may be paid his expenses, if
any, of attendance at [each meeting]meetings of the Board
of Directors, and may be paid a stated salary or retainer as director or a fixed
sum [for attendance at each] per meeting of the
Board of Directors (and/or its Committees),
or both. No such payment shall preclude any director from serving the
Corporation in any non-director capacity
and receiving compensation therefor.
ARTICLE
FOUR: COMMITTEES
4.01 Audit Committee. There
shall be an Audit Committee consisting entirely of such [outside ]independent
Directors as shall from time to time be appointed by resolution of the Board of
Directors. The Audit Committee shall be responsible for the selection and
appointment of the Corporation's independent accountants and for approving their
compensation and any non-audit services performed by them; reviewing the scope
and results of the audit plans of the independent accountants and internal
auditors; overseeing the scope and adequacy of internal accounting control and
record-keeping systems; reviewing the objectivity, effectiveness and resources
of the internal audit function; conferring independently with management, the
internal auditors and the
independent
accountants; and overseeing the Corporation's system of financial disclosure.
The Audit Committee shall have such other duties and responsibilities as shall
be set forth in a charter approved annually by the Board of
Directors.
4.02 Compensation Committee.
There shall be a Compensation Committee consisting [entirely ]of [such
outside independent ]Directors as shall from time to time be appointed by
resolution of the Board of Directors. At least a majority of the
Committee members shall be independent Directors. The Compensation
Committee shall be responsible for reviewing and approving the Chief Executive
Officer's compensation, and the compensation of other executive officers,
whether paid directly by the Corporation, or indirectly by the Corporation's
subsidiaries[; and establishing compensation policies for the Corporation's
directors]. The Compensation Committee shall have such other duties and
responsibilities as shall be set forth in a charter approved annually by the
Board of Directors.
4.03 Nominating/Corporate Governance
Committee. There shall be a Nominating/ Corporate Governance Committee
consisting entirely of [such outside independent ]Directors as shall from time
to time be appointed by resolution of the Board of Directors. At least a majority of the
Committee members shall be independent directors. The
Nominating/Corporate Governance Committee shall be responsible for screening and
recommending to the Board of Directors persons to be candidates for election or
appointment as Directors; evaluating the performance of the Board, including the
training and orientation of directors; establishing compensation
policies for the Corporation's directors; and reviewing corporate
policies such as Code of Conduct, stock ownership guidelines and insider trading
policies. The Nominating! Corporate Governance Committee shall have such other
duties and responsibilities as shall be set forth in a charter approved annually
by the Board of Directors.
4.04 [Outside, ]Independent
Directors. For the purposes of the preceding sections 4.01, 4.02 and
4.03, [“outside ]an
“independent director[s]” shall mean a non-employee
[directors. (Added April 4, 2006)]Director who otherwise meets
the qualifications for independence under applicable standards of The NASDAO
Stock Market, as amended from time to time.
4.05
Other Committees.
The Board of Directors may, at any time and from time to time, appoint
such other standing or special committees with such duties and responsibilities
as the Board of Directors shall determine including, without limitation, an
executive committee possessing and authorized to exercise, between meetings of
the Board, all of the powers of the Board in the management of the business and
affairs of the Corporation, except as may be limited by resolution of the Board,
by Section 4.07 of these By-Laws, or otherwise by applicable law.
4.06 Number; Qualification; Term.
Each committee shall consist of two or more directors appointed by
resolution adopted by a majority of the entire Board of Directors. The number of
committee members may be increased or decreased from time to time, and qualifications of
membership established and modified, by resolution or committee charter
adopted by a majority of the entire Board of Directors. Committee members
shall serve at the pleasure of the Board of Directors.
4.07 Limitation on Authority.
Notwithstanding anything to the contrary in the By-Laws, or in any
committee or resolution of the Board appointing such committee, no committee
shall have the authority of the Board of Directors in reference to:
(a) amending
the Articles of [Incorporation;]Association
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(b) approving
a plan of merger not requiring shareholder approval;
|
(c) approving
or proposing to shareholders action that the Vermont Business Corporation
Act requires be approved by the shareholders;
|
(d) amending,
altering, or repealing these By-Laws or adopting new
By-Laws;
|
(e) filling
vacancies in or removing members of the Board of Directors or of any
committee;
|
(f) electing
or removing officers or committee members;
|
(g) fixing
the compensation of any committee member;
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(h) altering
or repealing any resolution of the full Board of
Directors;
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(i) declaring
dividends or authorizing any other form of distribution to shareholders,
or authorizing the issuance of shares of the Corporation;
or
|
(j) authorizing
or approving the issuance or sale of shares or the reacquisition of
shares, except according to a formula or method prescribed by the Board of
Directors.
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4.08 Committee Changes. The
Board of Directors shall have the power at any time to fill vacancies in, to
change the membership of, and to discharge any committee.
4.09 Meetings. Regular and
special meetings of any committee may be held without notice at such times and
places as may be designated from time to time by resolution of the committee and
communicated to all committee members.
4.10 Quorum; Majority Vote. At
all meetings of any committee, a majority of the number of committee members
designated by the Board of Directors shall constitute a quorum for the
transaction of business. If a quorum is not present at a meeting of any
committee, a majority of the committee members present may adjourn the meeting
from time to time, without notice other than an announcement at the meeting,
until a quorum is present. The vote of a majority of the committee members
present at any meeting at which a quorum is in attendance shall be the act of a
committee, unless the vote of a different number is required by the Articles of
[Incorporation]Association or these
By-Laws.
4.11 Minutes. Each committee
shall cause minutes of its proceedings to be prepared and shall report the same
to the Board of Directors[ upon the request of the Board of Directors]. The
minutes of the proceedings of each committee shall be delivered to the Secretary
of the Corporation for placement in the minute books of the
Corporation.
4.12 Compensation. Committee
members may, by resolution of the Board of Directors, be allowed a fixed sum and
expenses of attendance, if any, for attending any committee meetings or a stated
salary.
4.13 Responsibility. The
designation of any committee and the delegation of authority to it shall not
operate to relieve the Board of Directors or any director of any responsibility
imposed upon it or such director by law.
ARTICLE
FIVE: GENERAL PROVISIONS RELATING TO
MEETINGS
5.01 Manner of Giving Notice.
Any notice required to be given to any person under the provisions of the
Articles of [Incorporation]Association, these
ByLaws or by law shall be given to the person either personally or by
sending a copy thereof:
(a)
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By
first class or express mail, postage prepaid, or courier service, charges
prepaid, to such person's postal address appearing on the books of the
Corporation or, in the case of Directors, supplied by such Director to the
Corporation for the purpose of notice. Notice pursuant to this subsection
shall be deemed to have been given to the person entitled thereto when
deposited in the United States mail or with a courier service for delivery
to that person; or
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(b)
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With
respect to directors[(but not shareholders)], by telephone, facsimile
transmission, e-mail or other electronic communication to such person's
facsimile number or address for e-mail or other electronic communications
supplied by such person to the Corporation for the purpose of notice.
Notice pursuant to this subsection shall be deemed to have been given [to
the person entitled thereto ]when sent[.];
or
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(c)
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With respect to
shareholders, by a written medium specified by the Board of Directors from time
to time and permitted by applicable law, including electronic
transmission. Notice pursuant to this subsection given by electronic
transmission shall be deemed to have been given when transmitted in a
manner authorized by the
shareholder.
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A notice
of meeting shall specify the date, time and place, if any, of the meeting and
any other information required by law or these By-Laws.
5.02 Waiver of Notice.
Whenever by law, the Articles of [Incorporation] Association, or these
By-Laws, any notice is required to be given to any person, a waiver thereof in
writing signed by the person or persons entitled to such notice, whether before
or after the time notice should have been given, shall be equivalent to the
giving of such notice. Attendance of a person at a meeting shall constitute a
waiver of notice of such meeting, except where such person attends a meeting for
the express purpose of objecting to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
5.03 Householding of Notices[.
Any]; E-Proxy.
For so long as
the Corporation shall have a class of stock registered under Section 12 of the
Exchange Act,
any documents, reports and other material (including proxy
materials) delivered
to a shareholder in a manner consistent with the delivery requirements contained
in Regulation 14A or 14C under the [Securities] Exchange Act [of 1934 ]shall be
deemed to be delivered to the shareholder entitled to such
delivery.
5.04 Bulk Mail. Notice of any
regular or special meeting of the shareholders, or any other notice or delivery required
by law, the Articles of [Incorporation]Association or these
By-Laws to be given to [all ]shareholders [or to all holders of a class or
series of shares], may be given by [any]bulk or second or third
class [of ]mail, postage prepaid, if the notice is deposited in the
United States mail at least 20 days prior to the day named for the meeting or
any corporate or shareholder action specified in the notice.
5.05 Shareholders Without Forwarding
Addresses. [Notice]Except as may otherwise
expressly be required by law, notice or other communications need not be
sent to any shareholder with whom the Corporation has been unable to communicate
for more than 24 consecutive months because communications to the shareholder
are returned unclaimed or the shareholder has otherwise failed to provide the
Corporation with a current address. Whenever the shareholder provides the
Corporation with a current address, the Corporation shall commence sending
notices and other communications to the shareholder in the same manner as to
other shareholders.
5.06 Telephone and Similar Meetings.
Directors or committee members may participate in and hold a meeting by means of [a
conference telephone or similar communications]audio or video conferencing
or other telecommunications or electronic equipment[ by means of
which], provided that
all persons participating in the meeting [can hear ]may communicate with
each other simultaneously.
Participation in such a meeting shall constitute presence in person at
such meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting is not lawfully called or convened.
5.07 Action Without Meeting.
Any action which may be taken, or is required by law, the Articles of
[Incorporation]Association, or these
By-Laws to be taken, at a meeting of directors, or committee members may be
taken without a meeting if a consent in writing, setting forth the action so
taken, shall be signed
by all of
the directors, or committee members, as the case may be, entitled to vote with
respect to the subject matter thereof[ and]. Any such written consent shall
have the same force and effect as a [unanimous vote ]resolution of such
directors or committee members, as the case may be, adopted by unanimous vote at
a duly convened meeting, and may be stated as such in any document filed
with the Secretary of State of Vermont or in any certificate or other document
delivered to any person. The consent may be in one or more counterparts so long
as each director[,] or committee member signs one of the counterparts. The
signed consent shall be placed in the minute books of the Corporation and shall
take effect as of the date of the last signature, unless a different effective date is
specified in the consent.
ARTICLE
SIX: OFFICERS AND OTHER AGENTS
6.01 Number; Titles; Election; Term.
The Corporation shall have a Chairman of the Board, Chief Executive
Officer, a president, one or more
vice presidents (and, in the case of each vice president, with such descriptive
title, if any, as the Board of Directors shall determine), a secretary, a
treasurer, and such other officers and agents as the Board of Directors may deem
desirable. The Board of Directors shall elect one of its members as Chief
Executive Officer and one of its members as President of the Corporation. Both
offices may but are not required to be held by the same person. The Board shall
also elect one or more vice-presidents, a treasurer, and a secretary after each
annual meeting of shareholders, or whenever a vacancy exists. The Board of
Directors then, or from time to time, may also elect or appoint one or more
other officers as it shall deem advisable. Each officer and agent shall hold
office for the term for which he is elected or appointed and until his successor
has been elected or appointed and qualified. Unless otherwise provided in the
resolution of the Board of Directors electing or appointing an officer or agent,
his term of office shall extend to and expire at the meeting of the Board of
Directors following the next annual meeting of shareholders, or, if earlier, at
his death, resignation, or removal. Any two or more offices may be held by the
same person[, except that the President and the Secretary shall not be the same
person]. No officer or agent except the Chief Executive Officer and President of
the Corporation need be a shareholder, a director, a resident of the State of
Vermont, or citizen of the United States. The Chief Executive Officer and
President must be shareholders and duly elected or appointed directors of the
Corporation.
6.02 Removal. Any officer or
agent elected or appointed by the Board of Directors may be removed by the Board
of Directors, at any time, with or without cause, but such removal shall be
without prejudice to the contract rights,
if any, of the person so removed. Election or appointment of an officer or agent
shall not of itself create contract rights.
6.03 Vacancies. Any vacancy
occurring in any office of the Corporation may be filled by the Board of
Directors.
6.04 Authority. Officers shall
have such authority and perform such duties in the management of the Corporation
as are provided in these By-Laws or as may be determined by resolution of the
Board of Directors not inconsistent with these By-Laws.
6.05 Compensation. The
compensation, if any, of officers shall be fixed, increased, or decreased from
time to time by the Board of Directors; provided, that the Board of Directors
may by resolution delegate to any one or more officers of the Corporation, or to
a committee of the Board, the authority to fix such compensation.
6.06 Chairman of the Board.
The [Chief Executive Officer of the Corporation shall be the ]Chairman of
the Board [and ]shall perform such executive, supervisory, and management
functions and duties as may be assigned to him from time to time by the Board of
Directors[,]. The
Chief Executive Officer of the Corporation shall be the Chairman unless
the Board appoints another Director to be Chairman.
6.07 Chief Executive Officer.
The Chief Executive Officer of the Corporation, subject to the
supervision of the Board of Directors, shall have general management of the
business and affairs of the Corporation in the ordinary course of its business
with all such powers with respect to such business and affairs as may be
reasonably incident to such responsibilities, including, but not limited to, the
power to employ, discharge, or suspend employees and agents of the Corporation,
to fix the compensation of employees and agents, and to suspend, with or without
cause, any officer of the Corporation pending final action by the Board of
Directors with respect to continued suspension, removal, or reinstatement of
such officer. The Chief Executive Officer shall see that all orders and
resolutions of the Board of Directors are carried into effect and shall perform
such other duties and have such other authority and powers as the Board of
Directors may from time to time prescribe.
6.08 President. The Board of
Directors shall appoint a President to serve as one of the officers of the
Company subject to the supervision of the [Chief Executive Officer and ]Board of
Directors. In the absence of the Chairman or if no Chairman is appointed, [and
in the absence of the Chief Executive Officer or if no CEO is appointed,] the
President shall preside at any meeting of the Board. He or she shall have and
may exercise any and all powers and duties pertaining by law, regulation or
practice to the office of President or imposed by these Bylaws. He or she shall
also have and may exercise such further powers and duties as from time to time
may be conferred upon or assigned by the Board of Directors. In the absence or
unavailability of the CEO, the President shall be authorized to perform all the
duties of that office.
6.09 Chief Operating Officer.
The Board of Directors may designate one of the officers of this
Corporation as the Chief Operating Officer. The officer thus designated shall
have and may exercise any and all powers and duties pertaining by law,
regulation, or practice to the office or as may be imposed by these Bylaws. He
or she shall also have and may exercise such further powers and duties as from
time to time may be conferred upon or assigned by the Board of
Directors.
6.[09]10 Vice President. Each vice
president shall have such powers and duties as may be prescribed from time to
time by the Board of Directors or as may be delegated from time to time by the
President. The Board shall designate one vice president to exercise the powers
of the President in the event of that officer's absence or inability to
act.
6.11 Treasurer. The Treasurer
shall have custody of the Corporation's funds and securities, shall keep full
and accurate accounts of receipts and disbursements, and shall deposit all
moneys and valuable effects in the name and to the credit of the Corporation in
such depository or depositories as may be designated by the Board of Directors.
The Treasurer shall audit all payrolls and vouchers of the Corporation receive,
audit, and consolidate all operating and financial statements of the Corporation
and its various departments and shall supervise the accounting and auditing
practices of the Corporation. Additionally, the Treasurer shall have the power
to endorse for deposit, collection or otherwise all checks, drafts, notes, bills
of exchange, and other commercial paper payable to the Corporation and to give
proper receipts and discharges for all payments to the Corporation. The
Treasurer shall perform
such
other duties as may be prescribed from time to time by the Board of Directors or
as may be delegated from time to time by the President.
6.12 Assistant Treasurers.
Each Assistant Treasurer shall perform such duties as may be prescribed
from time to time by the Board of Directors or as may be delegated from time to
time by the President or Treasurer. The Assistant Treasurer shall exercise the
powers of the Treasurer during that officer's absence or inability to act. In
the event more than one Assistant Treasurer is appointed, the President shall
designate one Assistant Treasurer to exercise the powers of the Treasurer as
herein set forth.
6.13 Secretary. In addition to
any other duties required by law or by the Board of Directors from time to time,
the Secretary shall perform the following duties:
(a)
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record
all votes and proceedings of the shareholders and directors or any
committee thereof;
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(b)
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have
the custody of the corporate seal, and of the corporate records within
this State;
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(c)
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keep
a record book, which shall always be available for the inspection and
copying by the shareholders, containing the names of the shareholders,
their places of residence, the number of shares held by each, the time
when they respectively acquired the shares, and the time of any transfers
thereof, except that such record book may be kept by a transfer agent
rather than the Secretary when such transfer agent is approved by the vote
of a majority of the shareholders of the Corporation; and
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(d)
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procure
and file in his own office certified copies of all papers required by law
to be filed with the Secretary of
State.
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6.14 Assistant Secretaries.
Each Assistant Secretary shall perform such duties as may be prescribed
from time to time by the Board of Directors or as may be delegated from time to
time by the President or Secretary. The Assistant Secretary shall exercise the
powers of the Secretary during that officer's absence or inability to act. In
the event more than one Assistant Secretary is appointed, the President shall
designate one Assistant Secretary to exercise the powers of the Secretary as
herein set forth.
ARTICLE
SEVEN: CERTIFICATES AND SHAREHOLDERS
7.01 Certificates for Shares.
The certificates for shares of stock of the Corporation shall be in such
form as shall be approved by the Board of Directors in conformity with law. The
certificates of each
class or series shall be consecutively numbered, shall be entered as they
are issued in the books of the Corporation or in the records of the
Corporation's designated transfer agent, if any, and shall state the
shareholder's name, the number of shares, and such other matters as may be
required by law. The certificates shall be signed, either manually or by
facsimile, by the President or any Vice-President and by the Secretary or the
Treasurer and shall be sealed with the seal of the Corporation or facsimile
thereof
7.02 Issuance. [Shares]Common or preferred shares
with or without par value may be issued pursuant to Article Five of
the Articles of Association for such consideration and to such persons as
the Board of Directors may from time to time determine, except in the case of
the shares with par value the consideration must be at least equal to the par
value of such shares. Shares may not be issued until the full amount of the
consideration has been paid.
7.03
Shares Without Certificates.
(a)
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Issuing Shares Without
Certificates. Unless the Articles of [Incorporation]Association
provide otherwise, the Board of Directors may authorize the [issue]issuance of
some or all the shares of [its] the
Corporation’s capital stock without certificates. [The]Such
authorization [does] shall not
affect shares already represented by certificates until they are
surrendered to the Corporation.
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(b)
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Information Statement
Required. Within a reasonable time after the issue or transfer of
shares without certificates, the Corporation shall send the shareholder a
written statement containing at a
minimum:
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(1)
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the
name of the issuing corporation and that it is organized under the laws of
Vermont;
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(2) |
the
name of the person to whom issued; and |
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(3) |
the
number and class of shares and the designation of the series, if any, of
the issued shares. |
(c)
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Procedures. The
procedures in Section 7.06 shall not apply to uncertificated
shares. The Board may adopt such alternative procedures concerning such
shares as it deems necessary or
appropriate.
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7.04 Consideration for Shares.
The consideration for the issuance of shares shall consist of money paid,
labor done (including services actually performed for the Corporation), or
property (tangible or intangible) actually received, including other securities
of the Corporation, and, in the discretion of the Board of Directors, one or
more promissory notes. The promise of future services shall not constitute
payment for shares. In the absence of fraud in the transaction, the judgment of
the Board of Directors as to the value of consideration received shall be
conclusive. When consideration, fixed as provided by law, has been paid, the
shares shall be deemed to have been issued and shall be considered fully paid
and nonassessable. The consideration received for shares shall be allocated by
the Board of Directors[, in accordance with law,] between stated capital and
capital surplus accounts.
7.05 Lost, Stolen, or Destroyed
Certificates. The Corporation shall issue a new certificate in place of
any certificate for shares previously issued if the registered owner of the
certificate:
(a)
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Claim. Makes proof in
affidavit form that a previously issued certificate for shares has been
lost, destroyed, or stolen;
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(b)
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Timely Request. Requests
the issuance of a new certificate before the Corporation has notice that
the certificate has been acquired by a purchaser for value in good faith
and without notice of an adverse
claim;
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(c)
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Bond. Gives a bond in
such form, and with such surety or sureties, with fixed or open penalty,
as the Board of Directors may direct, in its discretion, to indemnify the
Corporation (and its transfer agent and registrar, if any) against any
claim that may be made on account of the alleged loss, destruction, or
theft of the certificate; and
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(d)
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Other Requirements.
Satisfies any other reasonable requirements imposed by the
Corporation,
including any requirements of the Corporation's transfer
agent.
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Notwithstanding
the foregoing, the Corporation may waive any or all of the foregoing
requirements in its discretion. When a certificate has been lost, destroyed, or
stolen, and the shareholder of record fails to notify the
Corporation
within a reasonable time after he has notice of it, and the Corporation
registers a transfer of the shares represented by the certificate before
receiving such notification, the shareholder of record is precluded from making
any claim against the Corporation for the transfer or for a new
certificate.
7.06
Transfer Agent; Transfer of Shares.
(a)
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Transfer Agent. The
Corporation may act as its own registrar and transfer agent for any class
or series
of the Corporation's debt or equity securities, or it may designate
an affiliated or non-affiliated third party for such purpose, as the Board
of Directors may determine in its
discretion.
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(b)
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Transfer of Shares.
Shares of stock of the Corporation shall be transferable only on
the books of the Corporation (or its designated
transfer agent) by the shareholders of record thereof in person or
by their duly authorized attorneys or legal representatives. Upon
surrender to the Corporation or the transfer agent of the Corporation of a
certificate representing shares, duly endorsed or accompanied by executed
stock powers or other proper evidence of succession, assignment, or
authority to transfer, the Corporation or its transfer agent shall issue a
new certificate to the person entitled thereto, cancel the old
certificate, and record the transaction upon its books. The Board of
Directors may make such additional rules and regulations as it may deem
necessary or appropriate concerning the issue, transfer and registration
of share certificates and uncertificated
shares.
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7.07 Registered Shareholders.
The Corporation shall be entitled to treat the shareholder of record as
the shareholder in fact of any shares and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such shares on the part
of any other person, whether or not it shall have actual or other notice
thereof, except as otherwise provided by law.
ARTICLE
EIGHT: INDEMNIFICATION
8.01 Definitions. Terms not
otherwise defined in this Article shall have the meaning ascribed in the Vermont
Business Corporation Law, Title 11A of the Vermont Statutes Annotated, as in
effect from time to time.
8.02
Authority to Indemnify.
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(a)
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Except
as provided in subsection
8.02(d) and subject to [section]Section 8.06,
this Corporation shall indemnify an individual who is made a party to a
proceeding because he is or was a director against liability incurred in
the proceeding if:
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(1) |
he
conducted himself in good faith; and
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(2) |
he
reasonably believed: |
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(i)
in the case of conduct in his official capacity with the Corporation, that
his conduct was in its best interest;
and
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(ii)
in all other cases, that his conduct was at least not opposed to its best
interests; and
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(3)
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in
the case of any criminal proceeding, he had no reasonable cause to believe
his conduct was unlawful.
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(b)
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A
director's conduct with respect to an employee benefit plan for a purpose
he reasonably believed to be in the interests of the participants in and
beneficiaries of the plan is conduct that satisfies the requirement of
subsection
8.02(a)(2)(ii).
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(c)
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The
termination of a proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent is not, of itself,
determinative that the director did not meet the standard of conduct
described in this section.
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(d) |
The
Corporation may not indemnify a director under this
section: |
(1)
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in
connection with a proceeding by or in the right of the Corporation in
which the director was adjudged liable to the Corporation;
or
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(2)
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in
connection with any other proceeding charging improper personal benefit to
him, whether or not involving action in his official capacity, in which he
was adjudged liable on the basis that personal benefit was improperly
received by him.
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(e)
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Indemnification
permitted under this section in connection with a proceeding by or in the
right of the Corporation is limited to reasonable expenses
incurred in connection with the
proceeding.
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8.03 Mandatory Indemnification in
Certain Circumstances. This Corporation shall indemnify a director who
was wholly successful, on the merits or otherwise, in the defense of any
proceeding to which he was a party because he is or was a director of the
Corporation against reasonable expenses incurred by him in connection with the
proceeding.
8.04
Advance for Expenses.
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(a)
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The
Corporation may pay for or reimburse the reasonable expenses incurred by a
director who is or was a party to a proceeding in advance of final
disposition of the proceeding if:
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(1)
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the
director furnishes the Corporation a written affirmation of his good faith
belief that he has met the standard of conduct described in [section]Section
8.02;
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(2)
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the
director furnishes the Corporation a written undertaking, executed
personally or on his behalf, to repay the advance if it is ultimately
determined that he did not meet the standard of conduct;
and
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(3)
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a
determination is made that the facts then known to those making the
determination would not preclude indemnification under this Article
Eight.
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(b)
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The
undertaking required by subsection
8.04(a)(2) must be an unlimited general obligation of the director but
need not be secured and may be accepted without reference to financial
ability to make repayment.
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8.05 Court Ordered Indemnification.
A director of this Corporation who is a party to a proceeding may apply for
indemnification to the court conducting the proceeding or to another court of
competent jurisdiction. On receipt of an application, the court after giving any
notice the court considers necessary may order indemnification if it
determines:
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(1)
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the
director is entitled to mandatory indemnification under [section]Section 8.03,
in which case the court shall also order the Corporation to pay the
director's reasonable expenses incurred to obtain court-ordered
indemnification; or
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(2)
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the
director is fairly and reasonably entitled to indemnification in view of
all the relevant circumstances, whether or not he met the standard of
conduct set forth in [section]Section 8.02 or
was adjudged liable as described in subsection
8.02(d), but if he was adjudged so liable his indemnification is limited
to reasonable expenses incurred.
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8.06
Determination and Authorization of Indemnification.
(a)
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The
Corporation may not indemnify a director under [section]Section 8.02
unless authorized in the specific case after a determination has been made
that indemnification of the director is permissible in the circumstances
because he has met the standard of conduct set forth in Section
8.02.
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(b) |
The
determination referred to in subsection
8.06(a) shall be made: |
(1)
|
by
the Board of Directors by majority vote of a quorum consisting of
directors not at the time parties to the
proceeding;
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(2)
|
if
a quorum cannot be obtained under subdivision (1), by majority vote of a
committee duly designated by the Board of Directors (in which designation
directors who are parties may participate), consisting solely of two or
more directors not at the time parties to the
proceeding;
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(3) |
by
special legal counsel: |
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(i)
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selected
by the Board of Directors or its committee in the manner prescribed in
subdivision (1) or (2); or
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(ii)
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if
a quorum of the Board of Directors cannot be obtained under subdivision
(1) and a committee cannot be designated under subdivision (2), selected
by majority vote of the full Board of Directors (in which selection
directors who are parties may participate);
or
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(4)
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by
the shareholders, but shares owned by or voted under the control of
directors who are at the time parties to the proceeding may not be voted
on the determination. Notwithstanding
the foregoing, if a "change in control" (as defined in the federal Bank
Holding Company Act of 1956, as
amended) of the Corporation shall have occurred within the preceding two
years, the determination shall be made by special legal counsel, unless
otherwise expressly agreed by the person claiming
indemnification.
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(c)
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Authorization
of indemnification and evaluation as to reasonableness of expenses shall
be made in the same manner as the determination that indemnification is
permissible, except that if the determination is made by special legal
counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under [section
89]subsection
8.06(b)(3) to select
counsel.
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If it is
determined under this Section 8[9].06 that the claimant is entitled to
indemnification, payment to the claimant shall be made within 15 days after such
determination or demand.
8.07
Indemnification of Officers, Employees and Agents.
(a)
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An
individual who is made a party to a proceeding because he is or was an
officer of the Corporation is entitled to mandatory indemnification under
[section] Section 8.03
and is entitled to apply for court-ordered indemnification under
[section]Section 8.05,
in each case to the same extent as a
director.
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(b)
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The
Corporation shall indemnify and advance expenses under [section]Sections 8.02
and 8.04 to an individual who is made a party to a proceeding because he
is or was an officer of the Corporation, subject to the same conditions
and limitations and to the same extent that these ByLaws provide for
indemnification and advancement of expenses to a
director.
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(c)
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In
the discretion of the Board of Directors, the Corporation may indemnify
and advance expenses under Sections 8.02 and 8.04 to an individual who is
made a party to a proceeding because he is or was an employee or agent of
the Corporation, subject to the same conditions and limitations and to the
same extent that these By-Laws provide for indemnification and advancement
of expenses to a director.
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8.08 Insurance. The
Corporation may purchase and maintain insurance on behalf of an individual who
is or was a director, officer, employee, or agent of the Corporation or who,
while a director, officer, employee, or ageilt of the Corporation, is or was
serving at the request of the Corporation as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
against liability asserted against or incurred by him in that capacity or
arising from his status as a director, officer, employee, or agent, whether or
not the Corporation would have power to indemnify him against the same liability
under [section]Sections 8.02 or
8.03.
8.09 Contract Right. The right
of indemnification conferred upon directors and officers in this By-law shall be
a contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any proceeding in advance of its final
disposition. The right to indemnification under this Section 8.09 shall be
deemed to vest upon the occurrence of the event giving rise to the claim for
indemnification and no subsequent modification or repeal of this Article Eight
or other action on the part of the Corporation or otherwise shall operate to
limit or impair such right. Nothing in this Section 8.09 shall be deemed to
create any vested contract right to indemnification or advance of expenses in
favor of any person for whom indemnification or advancement of expenses is
merely permissive and not required under applicable law or this Article
Eight.
8.10 Enforcement of Rights. In
any action brought by a claimant to enforce the right to indemnification under
this Article Eight, it shall be a defense to any such action (other than an
action brought to enforce a claim for expenses incurred in defending any
proceeding in advance of its final disposition where the requirements of Section
8.04 have been met), that the claimant has not met the standard of conduct which
makes it permissible under the Vermont Business Corporation Law for the
Corporation to indemnify the claimant for the amount claimed, but the burden of
proving such defense shall be on the Corporation.
8.11 Non-Exclusive Rights; Survival.
The right to indemnification and the payment of expenses incurred in
defending a proceeding in advance of its final disposition conferred in this
Article Eight shall not be exclusive of any other right which any person may
have or hereafter acquire under any statute, other provision of the Articles of
Association or By-Laws, contract, vote of
stockholders
or Directors or otherwise. No repeal or modification of this Article Eight shall
in any way diminish or adversely affect the rights of any director, officer,
employee or agent of the Corporation hereunder in respect of any occurrence or
matter arising prior to any such repeal or modification.
8.12 Severability. If any
provision or provisions of this Article Eight shall be held to be invalid,
illegal or unenforceable for any reason whatsoever: (i) the validity, legality
and enforceability of the remaining provisions of this Article Eight (including,
without limitation, each portion of any section of this Article Eight containing
any such provision held to be invalid, illegal or unenforceable, that is not
itself held to be invalid, illegal or unenforceable) shall not in any way be
affected or impaired thereby; and (ii) to the fullest extent possible, the
provisions of this Article Eight shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or
unenforceable.
8.13
Application of this Article.
(a)
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These
provisions do not limit the Corporation's power to pay or reimburse
expenses incurred by a director, officer or other person in connection
with his appearance as a witness in a proceeding at a time when such
individual has not been made a named defendant or respondent to the
proceeding.
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(b)
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It
is the intent of this Article Eight that the Corporation (i) shall
indemnify and advance expenses to directors and officers of the
Corporation and (ii) shall have the right to indemnify and advance
expenses to any employee or agent, in each case, to the fullest extent
permitted by applicable law. In the event that, after this Article Eight
becomes effective, any such applicable law is amended to permit expanded
powers to indemnify or advance expenses, the Corporation shall be deemed
to have and may exercise all such expanded powers, notwithstanding any
contrary provision of these
By-Laws.
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(c)
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It
is the intent of this Article Eight that it shall apply to acts and
omissions that occurred prior to its adoption, even though suit is not
filed or a claim is otherwise asserted until after such
adoption.
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ARTICLE
NINE: EMERGENCY PREPAREDNESS
9.01 Emergency. If there is an
emergency declared by governmental authorities or otherwise subsisting as the
result of a regional or national disaster or act of war or terrorism, and of
such severity as to prevent the normal conduct and management of the affairs of
the Corporation and its subsidiaries:
(a)
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Temporary Executive Committee.
If it is impractical for the Board of Directors, or the Executive
Committee (if one has been appointed) to meet, any three available
Directors shall constitute an Emergency Executive Committee authorized to
exercise the full authority of the Board of Directors, except as limited
by applicable law, until such time as the appointed Executive Committee or
the Board of Directors can again assume full responsibility and control of
the Corporation; and
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(b)
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The
available officers and employees of the Corporation shall continue to
conduct the affairs of the Corporation, with such guidance as may be
available to them from the Board of Directors, the Executive Committee or
the Temporary Executive Committee constituted under Section 9.01(a)
hereof, subject to conformance with any governmental directives during the
emergency.
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ARTICLE
TEN: MISCELLANEOUS PROVISIONS
10.01 Distributions. Subject
to provisions of the statutes and the Articles of [Incorporation]Association,
dividends or other distributions may be declared by the Board of Directors at
any meeting and may be paid in cash, in property, or in shares of stock of the
Corporation. Such declaration and payment shall be at the discretion of the
Board of Directors.
10.02 Reserves. The Board of
Directors may create out of funds of the Corporation legally available therefor
such reserve or reserves as the Board of Directors from time to time, in its
discretion, considers proper to provide for contingencies, to equalize dividends
or to repair or maintain any property of the Corporation, or for such other
purposes as the Board of Directors shall consider beneficial to the Corporation.
The Board of Directors may modify or abolish any such reserve.
10.03 Books and Records. The
Corporation shall keep correct and complete
books and
records of account, shall keep as permanent records the minutes of the
proceedings of its shareholders, Board of Directors, and any committee, and
shall keep at its registered office or principal place of business, or at the
office of its transfer agent or registrar, a record of its shareholders, giving
the names and addresses of all shareholders and the number and class of the
shares held by each shareholder.
10.04 Fiscal Year. The fiscal
year of the Corporation shall be as provided in the Articles of
[Incorporation]Association.
10.05 Seal. The seal, if any,
of the Corporation shall be in such form as may be approved from time to time by
the Board of Directors.
10.06 Resignation. A director,
committee member, officer, or agent may resign by so stating at any meeting of
the Board of Directors or by giving written notice to the Board of Directors,
the President, or the Secretary, or other officer responsible for recording the
minutes of the meetings of the shareholders and directors. Such resignation
shall take effect at the time specified therein, or immediately if no time is
specified. Unless it specifies otherwise, a resignation is effective without
being accepted.
10.07 Securities of Other
Corporations. Except as may be otherwise provided by resolution of the
Board of Directors, the Chairman[ and ], the CEO, the
President, the Secretary, or any Vice-President of the Corporation shall have
the power and authority to transfer, endorse for transfer, vote, consent, or
take any other action with respect to any securities of another issuer which may
be held or owned by the Corporation and to make, execute, and deliver any
waiver, proxy, or consent with respect to any such securities. For purposes of
this section, the term "securities" shall include, without limitation, any
membership interest the Corporation may hold in any limited liability company or
similar venture.
10.08 Amendment. Except as
hereinafter provided in this Section 10.08, or by law or in the Articles of
[Incorporation]Association, these
By-Laws may be altered, amended or repealed by the directors acting by
resolution of a majority of the directors then in office or by resolution of the
shareholders. Notwithstanding any other provision of these By-Laws or of the
Articles of
[Incorporation]Association and
notwithstanding the fact that some lesser percentage may be specified by law,
the affirmative vote of the holders of 75% or
more of the combined voting power of the then-outstanding shares of the
Corporation's capital stock entitled to vote generally in the election of
directors shall be required to amend, alter, change, or repeal, in whole or in
part, Sections 3.02, 3.03, 3.04, 3.05, or
3.06 of these By-Laws.
10.09 Invalid Provisions. If
any part of these By-Laws shall be held invalid or inoperative for any reason,
the remaining parts, so far as it is possible and reasonable, shall remain valid
and operative.
10.10 Headings. The headings
used in these By-Laws are for convenience only and do not constitute matter to
be construed in the interpretation of these ByLaws.
The
undersigned, the Secretary of the Corporation, hereby certifies that the
foregoing By-Laws, as amended and restated, were adopted by the Board of
Directors of the Corporation, as of October[15, 2002
and as further amended July 8, 2003, January 6, 2004, July 6, 2004, October 12,
2004 and April 4, 2006] 7, 2008.
/s/
Christianne Bumps
Corporate
Secretary
Community
Bancorp.
(Seal)